Lawyer who started on pro bono capital appeal as summer associate hopes to take it to top US court

Constitutional Law

Lawyer who started on pro bono capital appeal as summer associate hopes to take it to top US court

By Martha Neil

May 3, 2013, 05:10 pm CDT

When William Ernest Kuenzel got married to a social worker in 2008, attorney David Kochman was his best man. He’s also Kuenzel’s pro bono appellate counsel in a death-penalty case in which the attorney is asserting that his client is actually, factually innocent.

Kochman, a 33-year-old commercial litigation associate at Reed Smith, has put in 400 to 700 hours annually on Kuenzel’s appellate matters for the last decade. He has been working on Kuenzel’s case since 2003, when he learned of it, while a summer associate at Anderson Kill, from a sole practitioner in a nearby law office. Labor and employment lawyer David “Duff” Dretzin had then been working on Kuenzel’s case for a decade himself, the New York Law Journal (sub. req.) reports in a lengthy article.

In 1996, Dretzin died, at age 77, from injuries sustained in an auto accident. Kochman, then a second-year associate at Anderson Kill, took a deep breath, and—experiencing “a huge wave of nausea” as he thought about the life-and-death responsibilities involved—took the helm in the petition he and Dretzin had recently filed with the Atlanta-based 11th U.S. Circuit Court of Appeals.

Despite a 2002 admission by Kuenzel’s trial lawyer that he was ineffective—Alabama, at the time of Kuenzel’s 1988 trial, capped indigent defense fees at $1,000—and claims of factual innocence and prosecutorial misconduct, to win the appeal Kochman is now seeking to take to the U.S. Supreme Court is an uphill battle, the article says.

That’s because Dretzin, new to the case, misinterpreted the law about an appellate deadline and filed six months late. That error has formed the basis for all subsequent denials of Kuenzel’s efforts to obtain appellate relief.

At issue in the case is a woman’s 1987 slaying.

Kuenzel says he was asleep at home, 25 miles away, when his roommate allegedly shot a clerk to death during a convenience store robbery. Implicated by his roommate and offered a plea deal that would have required him to serve an eight- to 10-year sentence for first-degree murder, Kuenzel refused to say he was guilty of the crime. Instead, his roommate took a similar plea, served his time and was released. The state says Kuenzel was the shooter.

Kochman says that all his 51-year-old client wants is a fair trial in the Talladega County case.

“I’m terrified that this is not going to get corrected,” the lawyer tells the legal publication. “It scares me to my core that the judicial system that I believe in could possibly sentence a man to his death without any review, simply based on a foot fault.”